The High Court · 2025

Petition under section 1b1 of cpc praying that in the circumstances stated in the affidavit fired in support of the peiitio;, In" Hign court may o" pr"*"0 vacate the interim order dated order dated 03.0g.2016 as extended on ot.og.zoto in CCCAMP No.399/2016 in CCCA No.148/2016 Counsel for the Appeilants: SRl. SUDHAKAR RAO KULKARNT Counsel for the Respondents: Sri V. HEMANTH KUMAR replesenting SRI RAVI KONDAVEETI The Court delivered the following Judgment: THE HONOURABLE DT.JUSTICE G.RADHA RANI CITY CIYIL COURT APPEAL No.l48 of 2016 JUDGMENT: This appeal is filed by the appellant Nos. I and 2-ptaintiff Nos. I and 3 aggrieved by the dismissal of the suit filed by them seeking the relief of partition and separate possession in O.S No.349 ol 2013 by the VII Senior Civil Judge, City Civit Court, Hyderabad, vide judgment dared 29.04.2016.

2. The appellant Nos.l and 2 along with the respondent No.2 (plaintiff No.2) filed the suit for partition contending rhar rhey atong with respondent No.I (defendant) were the children of Sri P. Balamallaiah. 'fhe suit schedule property bearing Municipal No. l9- I - I 84 admeasuring I 62 sq. yds., situated at Dood Bowli, Chatkanipura, Hyderabad, belonged ro Smt. P. Neelamma, their patemal grandmother, who purchased the same through registered sale deed document No. 1102/1356 Fasli dated 281h Amardad 1356 Fasli. Smt. P. Neelamma died intestate on 08.11.1990 leaving behind her, her daughter Devamma and son p.Balamallaiah as her legal heirs. Sri P. Balamallaiah, father of the plaintiffs and delendant died in the month of December, I996, leaving behind him the plaintifls and the defendant as his legal heirs. The mother of the plaintiffs and defendant pre-deceased her husband P. Balamallaiah. Smt. Devamma was residing at ) \ -*1 DI.GKR,J CCCA.\o.l4Eol2016 - Nizamabad. Her husband died earlier and she had no issues. She died at Nizamabad on 25.08.2011. The plaintiff Nos. I and 2, aller their marriages \ were residing a1 Nizamabad along with their respective husbands, while the ptaintiff No.3 was residing in a portion of the suit schedule property, even after her nrarriage along with her husband and children. After the death of Devamma, the plaintiffs demanded the defendant for partition of the suit schedule property and to deliver their separate shares, but the defendant was evading and avoiding to do so. Tl.re defendant wanted to usurp the entire schedule propefiy. He bore grudge against the plaintiffs, more particulailr,, against the plaintiif No.3, who was residing in a portion of the suit schedule property and started harassing her and her lamily members. [n furtherance of his intention, on the intervening night of 21122 November, 20 t2, the defendant along with unsocial elements tried to t dispossess the plaintiff No.3. The plaintiff No.3 gave policd complaint and thereafter fited O.S. No.2650 of 2012 against the defendant seeking relief of perpetual injunction in the court of XX-Junior Civit Judge, City Civil Court, Hyderabad and obtained interim injunction. The defendant appeared in the said case and filed counter and written statement. He claimed ownership rights in respect of the entire schedule propefty. The defendant falsely alleged that Smt. P. Neelamma during her lifetime bequeathed the property in favour of her daughter Devamma and that Devamma gifted the 3 CCCA \o ltE ol 20t6 property in favour of defendant through registered gift deed vide document No.985 of 2004 dated,03.01 .2004. The plaintiff conrended that Smr. p. Neelamma never executed any Will bequeathing the schedule property in favour of Devamma. The defendant created the gift deed to usurp the schedule property to deprive the plaintiffs their due shares. The ptaintiffs were not aware about the execution of the gift deed by Devamma. The schedule property belonged to Smt. p. Neelamma and after her death and after the death of her son and daughter, the plaintiffs being the grand daughtcrs were having equal shares along with the defendant and as such, filed the suit for partition and to pass a preliminary decree by allotting 3/4,h share to the plaintiffs.

3. The defendant filed written statement adrnitting his relationship with the plaintiffs and that they were the chtildren of Sri p. Balamallaiah. Smt. P. Neelamma, their paternal grandmother, was the original owner of the schedule property. He contended that he acquired the suit schedule property from his ancestors legally and was in occupation of the same as its lawful owner. Since the plaintiff No.3 migrated to Hyderabad from Nizamabad and was Iooking for shelter, on account of love and affection, he provided shelter to her by giving one room from his property. Subsequently, the husband of the plaintiff No.3, alter eaming 1 DLGRR.J CCCA No 118t2f2015 substantial iunds, agreed and accepted to pay Rs.1,000/- per month as rent and paid the same lor few months. Thereafter, they stopped to pay the \ agreed rents. When the defendant asked them regarding amears of the rent, the husband of tlre plaintiff No.3 got filed the suit by the ptaintiffs against the delendant by making untenable allegations with a matafide intention to grab the property of the defendant. The defendant was having right to evict plaintilf No.3 and resen,ed his right to evict the plaintiffs from the suit schedule property. The plaintilf No.3 in collusion with the plaintilf Nos.l and 2 filed the above suit lcrr parlition in respect of the suit schedule property. How'ever, they were no way concerned nor connected with the suit schedule propefiy. The suit tiled by the plaintiffs was not maintainable and they were not entitled to seek any decree for partition of the suit schedule propefty and prayed to dismiss the suit.

4. Basing on the above pleadings, the leamed VII Senior Civil Judge, City Civil Court, Hyderabad, framed the issues as follows: l) Whether the plaintiffs are entitled for preliminary decree of partition as prayed for? I1' so, what are the shares to which the plaintiffs and defendant are entitled to? 2) Whether the court fee paid is proper and sufficient? 3) To what reliel) f CCCA O. CRR,J oI2016 ^.at16

5. The plaintiff No.3 was examined as pW.l. A neighbouring person belonging to the same locality was examined as pW.2. Exs.Al to A7 were marked on behalf of the plaintiffs. The defendant was examined as DW.1. The plaintiff No.2 filed her evidence affidavit as DW.2 on behalf ol the defendant, but failed to appear for cross-examination. As such, her evidence was eschewed from consideration. The wife of the defendant was examined as DW.3. Exs.Bl to B13 were marked on behalf ofthe defendant.

6. On considering the oral and documentary evidence on record, the trial court dismissed the suit. Aggrieved by the said dismissal, the plaintiff Nos. I and 3 preferred this appeal showing.the plaintiff No.2 as respondent No.2. The respondent No.2 was shown as not necessary pafty to the appeal. l. Heard Sri Sudhakar Rao Kulkami, leamed counsel for the appellants and Sri V. Hemanth Kumar, leamed counsel representing Sri Ravi Kondaveeti, leamed counsel on record for the respondents.

8. The leamed counsel for the appellants contended that Smt Devamma has no right to execute any alleged deed or gift deed dated

30.07.2004 in favour of the respondent No.l-defendant, in respect of the {t DT,GRR.I CCCA No.l48 oJ2016 entrre propefty. Admittedly, the suit property was purchased by Smt. p. Neelamma W/o.P. Basavaiah, who was the mother of p. Balamaltaiah (father ol the appellants and the respondents herein) and Devamma. The trial court failed to appreciate that the respondent No.l failed to prove as to how Smt. Devamma got right to execute the alleged gift deed in his favour as Smt. Devamma had no competency and right to execute any deed much less the gift deed in favour of the respondent No.1. The trial court ought to have appreciated that no independenr evidence was adduced by the respondent No. I herein to prove that the suit schedule propefty was not liable for partition. It ought to have rejected or discarded the evidence of DWs. 1 and 3. DW.3 was none other than the wile of the respondent No.l and prayed to allow the appeal.

9. The leamed counsel lbr the respondents, ol\ the other hand, contended that the suit schedule property was the self acquired property of Smt. P. Neelamma, grandmother of the appellants-plaintiffs and respondent-defendant. During her lifetime, she bequeathed the property in favour of her daughter Devamma. When Smt. Devamma fell seriously ill in the year 2OO2,the respondent-defendant brought her to the suit schedule property and looked after her welfare by providing food, shelter and medicines. Out of love and affection towards him, his aunt Devamma '7 DT.GRR,J CCCA r\o.t48oI)0t6 executed a registered gift deed document No.985 of 2004 on 03.07.2004. The suit schedule property was also mutated in the name of the defendant in Municipal records and he was paying the property tax to GHMC. The defendant obtained electricity connection and water connection and was paying water bills in respect of the entire property. After execution of the gift deed, the defendant constructed five rooms with his own funds and was receiving rents. Until 2006, none of the plaintiffs resided in the suit schedule property and none of them made any claim for rents accruing from the property. Even after the death of Smt.Devamma on 25.08.2011 till 2013 none of the plaintiffs derianded partition of the suit schedule propefty and not issued any legal notice to the said effect. Exs.BS to Bl0 were filed by the delendant to substanfiate' his ownership and possession PW.2 also deposed that defendant was enjoying continuouq possession and that he had constructed present structure with his own funds. Considering the said evidence the trial court rightly came to the conclusion that the document amply establish that the defendant was the absolute owner and was in possession and enjoyment of the properly and that the suit property was not available for partition

9.I. Leamed counsel for the respondent No. l-defendant further contended that the plaintiffs had:rot filed any suit for cancellation of E Dt.GRR,J CCCA \o-llE o/'2016 registered gift deed dated 03.07.2004 titt dare. They had filed the suit for partition after 9 years without chaltenging or seeking cancellation of the registered gift deed and relied upon the judgments of the Hon'ble Apex Court in Ramti Devi (Smt.) v. Union of Indiar and Abdul Rahim and others v. Sk.Abdul Zabar and others2 on the aspect that the limitation period to file suit challenging the validity of the gift deed was three years from the date of knowledge of the transaction and until the document was cancelled by proper declaration, the duty registered document assumes validity and binding on the parties as such, the suit necessarily has to be filed within three years lrom the date when the cause of action had occurred.

9.2. He further relied upon the judgments of the High Court of Delhi in Sangeeta Sehgal & Ors. v. Gautam Dev Sood & Ors.r on the aspect that before seeking the relief of declaration of cancellation of registered gift deed, the relief of partition could not be claimed and that the limitation period seeking lor cancellation of the registered gift deed was three years from the date of knowledge of the fact under.Article 59 of the Limitation Act and the said period was completed as such, the suit was barred under law ' (rgss) t scc rgs ' lzoosy e scc tro ' 2022 scc onl-ine Del 2685 // 9 D.,(;Rf,.J cccA ]lo_t46 oI2016

10. Now, rhe points for consideration in this appeal are as follows: Whether the appe llan ts-plaintiffs are entitled to seek the relief of partition of the suit schedule property without claiming the relief of cancellation of the registered gift deed executed by Smt. Devamma in favour of respondent No. I ? 2 , Whether the appellants-plaintiffs are entitled to seek preliminary decree for partition of the .suit schedule property and were entitled to be allotted l/4th share each in the suit schedule property? Whether the judgment of the trial court in dismissing the suit was in accordance with law and facts on record?

4. To what result?

11. POINT No.l: As seen from the pleadings of the parties, both the pjrties admitted that their patemal grandmother Neelamma was the owner of the suit schedule property by virtue of a registered sale deed document No.l 102 of 1356 Fasli marked under Ex.Al and that she died intestate on 0g.il.1990 leaving behind her, her daughter Devamma and her son p. Bala Mallaiah as her legal heirs' It was arso admitted that Devamma and her husband Rajalingam died issueless. Though the plaintiffs contended that their father Bala Mallaiah died in the month of December, 1996, the defendant IO DTGRR.! CCCA ao k8 oI )016 contended that his father had deserted then.r after the death of their mother Smt. P. Janabai, their mother died in the year i99l and subsequently his father's whereabouts were not known. The delendant contended that when his aunt Devamma became seriously sick in the year ).002, he brought her to the suit schedule property and looked after her welfare by providing food, shelter and medicines and out of love and affection towards him, his aunt Devamma executed a registered gift deed on 03.07.2004 giving the entire suit scl.redule propefty to him vide registered document No.985 of 2004 and he got his name mutated in the records of GHMC and was paying property tax to the authorities and also obtained electricity and water connections and constructed five rooms in the place ol one room after execution of the said gift deed and let out the same to the tenants. Though these facts are not disputed by the plaintiffs, the fegal question that arises for consideration is: W'l'rether Smt. Devamma can execute a gift deed in respect of the entire suit schedule property in favour of the respondent No. 1-defendant?

12. The defendant contended that Neelamma during her lifetime had bequeathed a Wilt in favour of her daughter f)evamma and that Devamma gifted the suit schedule propedy to him through registered gift deed document No.985 of 2004 dated03.07.2004. But, no such Will was I -7/' DTGRR,J CCC4 ib.l4E of20l6 filed by the defendant before the trial court. The defendant only relied upon the contents of the gift deed marked as Ex.B6 wherein it was stated that the donor Smt. N. Devamma Wo. Rajatingam was the absolute, undisputed owner and occupier of the house property bearing No. 19-1-184 admeasuring an extent of 162 sq. yds., and construction area of 900 sft., Chataknipura, Hyderabad, by virtue of aWill deed executed on 08.10.1988 by Smt. Neelamma Saheba D/o. Eramma Saheba in favour of the donor. The defendant failed to file the said Will deed executed by Smt. Neelamma in favour of Devamma on 08.10. 1988 as stated in the gift deed marked under Ex.B6. When he was unable-tb fite the link document to show that Devamma was the absolute owner of the entire suit schedule property, which was a key document, it cannot be considered that Devamma was having valid title or ownership over the entire property and could convey a legal title in favour of the defendant. In the absence of filing the Will deed and proving the same in accordance with law, Devamma cannot be considered as the owner of the entire propefty and she carLnot gift and transfer title or ownership of the entire property to the defendant as per the fundamental principle of property law 'nemo dat quod non habet', which means no one can give what they do not have. Even if the gift deed was a registered document, it would only prove the execution of the document but not the validity of the ownership of the donor. The donor must prove l2 DLGRR J CCC.1 jo.ltE of 2016 as to how he/she acquired the property and that they have exclusive ownership over the said property. The respondent No.1-defendant could not become the tawful owner of the suit schedule propefty if he was unable to prove that the donor had valid right or title over the suit schedule property to gift it to him. As such, the gift deed is not a valid document to confer ownership on the respondent No. I _defendant. When the said registered gift deed is a document which is void ab initio in view of the donor not having exclusive right over the suit schedule property to gift it to the respondent. No. t-defendant, the appellants-praintiffs need not craim the relief of cancellation of the registered gift deed executed by Smt. Devamma in favour of the respondent No.1-defendant ancr were entitled to seek the relief ol partition without claiming the relief of cancellation of the registered gift deed document. I 3. The judgments relied by the leamed counsel for the respondent No.l of the Hon'ble Apex Court and of the Delhi High Court are not applicable to the facts of the present case as the gift deed was a valid document in the above cited cases, but not an invarid document as in the present case.

14. Even if Devamma is considered to have partial right over the suit schedule property and that she could validly execute the gift deed to l3 D..cA&I ca'cA No.ItE ot20t6 the extent of her share, the respondent No. l-delendant failed to examine the attestors of the gift deed. Section 68 of the Evidence Act requires atleast one attesting witness to be examined to prove the execution of a gift of immovable property. The testimony of the arresting witness was required to prove that the donor signed (or acknowledged) the deed in his presence and that the witness signed in the donor's presence. Only when Section 68 of the Evidence Act is satisfied, the court can presume that the instrument was duly executed and attested. The gift deed marked under Ex.B6 contains only the thumb impression of the donor, but not her signature. No attesting witness was examined to prove that the donor attested her thumb impression on the document in their presence. 1 5. The respondent No. I -defendant got examined his wife as DW.3. DW.3 stated that she was one of the attesting witnesses at the time \ of the registration of the gift deed, but admitted in her cross-examination that she did not sign underneath the signatures of the two attestors in Ex.B6 and had signed only in the second page of Ex.B6. One Ravi and Md.Saleem were shown as the attestors to the gift deed. The name of DW.3 Smt. P. Shiva Lakshmi was not shown as an attesting witness. Her name was shown only in the second page of Ex.B6. As such, she cannot be considered as an attestor to the iiFdeed

1.1 Dt.GRR,J CCCA No-t{E of 2016 r1 I I6. It is a settled law that it was rnandatory to examine atleast one of the attesting witnesses to prove the gift deed [K. Narasamma v. K.C. Chandrasekhar ((2010) 5 SCC 689)l Regisrration of the document does not dispense with the requirement of proof under Section 68 of the Indian Evidence Act as per the judgment of the Hon'ble Apex Court in H. Siddiqui (D) By L.Rs. v. A. Ramalingam(2011 (4) SCC 240). The burden remains on the donee to prove the valid execution of thc gilt deed as per the judgrnent of the Hon'ble Apex Court in Seetha Lakshmi v. Narasimhan (2{)20 SCC OnLine SC 26). Non examinarion of atleasr one attesting witness was fatal and the gift deed shall be treated as not proved in accordance w'ith law rendering the gift ineffective. As such, the gift deed is not valid even to the extent of the half share of the donor Smt. p. Devamma in favour of the respondent No. I -defendant.

17. The other contention taken by the respondent No.l-defendant was that the properly was the self acquired propefty of their patemal grandmother Smt. P. Neelamma and on her death, it would be devolved upon her children equally and as their father P. Bala Mallaiah was lound missing, the plaintilTs were not entitled to claim any share in such property during his lifetime. l5 DLGRR,J CCCA No.l16 of2015

18. To consider the said aspect, there are no pleadings to that effect made by the respondent No.l-defendant in his written statement. DW. I in his evidence affidavit stated that his father's whereabouts were not known and he deserted them after the death of their mother Smt. p. Janabai in the year 1991. In his cross-examination, DW. I admitted that the whereabouts of his father were not known since 1996 till date. Though he stated that one of his relatives, by name, Sri Bajrang S/o. Komaraiah of Nizamabad, met his father three years ago, he had not examined the said person as a witness on his behalf to prove that his father was alive. As the delendant also admitted that the whereabouts of his father were not know since 1996 and as per Section 108 ofthe Indian Evidence Acr, lB72,if there is no news of the person, who was missing for 7 years or more, by the persons who would naturally have heard of him if he, was alive, the burden of proving that the said person was alive shifts to the person claiming that he was alive. Thus, Section 108 of the Indian Evidence Act establishes a presumption of civil death after a person has not been heard offor 7 years and the burden ofproofshifts on the person claiming that the individual was still alive. As the respondent No. l -defendant failed to discharge the said burden to show that his father was alive, the presumption of death can be raised after the completion of 7 lull years from the date of his found missing. As the suit was filed in the year 2013 I6 Ot.CRR.J CCC..| ,\'o- llE oJ )0t 6 and the det-endant also admitted that the whereabouts of his father were not ()96 and as the suit was filed by the plaintiff I 7 years after known since I the missing of thcir father, it can be presumed that Balamallaiah was not alive. 1-he property acquired by the father of the parties through their mother is considered as his self acquired property and the property can be passed on to his legal heirs through succession after the said person is presumed dead. As such, the suit for partition fired by the plainriffs is maintainable and the ptaintirfs are entitled to seek the relief of partition u'ithout claiming the rerief of cancelration of registered gift deed executed by Smt. De',,arnrna in favour of the respondent No. 1_defendant.

19. POINT No.2: ln view' ,tf answering point No.l in favour of the appellants_ plaintiffs, they are entitled for a pretiminary decree of ptrrtition of the suit schedule property into four equal shares and were entitled for 1/41h share each in the suit schedule propefty.

20. POINT No.3: As the trial courl erred in coming to the conclusion that the plaintiffs are not entitled for partition of the suit schedule property and dismissed the suit without properlv considering the law on these aspects and the evidence on record, it is considered fit to set aside the same. -f t7 DLCRR.J CCCA tio 118 oI2016

21. POINT No.4: In the result, the appeal is allowed setting aside the judgment and decree dared 29.04.2016 passed in o.S. No.349 of 2Ol3 by the vII Senior Civil Juclge, City Civil Court, Hyderabad. No costs. Miscellaneous applications pending, if any, shall stand closed' \ To Sd/. M. RAMANA KRISHNA JOINT REGISTRAR //TRUE COPY// ECTION OFFICER

1. The Vll Senior Civil Judge, City Civil Court, Hyderabad. 2. One CC to SRl. SUDHAkAR RAO KULKARNI Advocate loPucl 3. One CC to SRl. RAVI KONDAVEETI Advocate [OPUC] 4. Two CD Copies kul/PSL ?r I HIGH COURT DATED:09/06/2025 +DECREE JUDGMENT CCCA.No.148 ol 2016 ..:. - i 22 sEp 2U5 -f, -d -. ! . :.1' ", t't' -,-. t ALLOWING THE C(]CA WI'TIIOUT COSTS lTIr )) D